Delivers the following judgment, which was adopted
on the last-mentioned date:

PROCEDURE

1. The case originated in an application (no. 54528/00)
against the Republic of Cyprus lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Cypriot national, Mr Achilleas
Korellis (“the applicant”), on 18 January 2000.

2. The applicant, who had been granted legal aid,
was represented by Mr M.G. Pikis, a lawyer practising in Nicosia. The
Cypriot Government (“the Government”) were represented by their
Agent, Mr A. Markides, Attorney-General of the Republic.

3. Relying on Article 6 § 1 of the Convention,
the applicant alleged that he had not received a hearing before an impartial
tribunal in the criminal proceedings taken against him.

4. The application was allocated to the Third
Section of the Court (Rule 52 § 1 of the Rules of Court). Within that
Section, the Chamber that would consider the case (Article 27 § 1 of
the Convention) was constituted as provided in Rule 26 § 1.

5. On 1 November 2001 the Court changed the composition
of its Sections (Rule 25 § 1). This case was assigned to the newly composed
Second Section (Rule 52 § 1).

6. By a decision of 23 April 2002, the Court declared
the application admissible.

7. The applicant and the Government each filed
observations on the merits (Rule 59 § 1).

THE FACTS

8. The applicant was born in 1953 and lives in
Nicosia.

9. He was accused of rape and committed for trial
before an Assize Court.

10. At the commencement of the hearing of the
case before the Assize Court, the defence requested discovery of a number
of relevant documents in the prosecution’s possession. The defence
further requested that a forensic examination of the complainant’s
knickers be carried out and that swabs taken from her vagina be analysed.
The prosecution objected. After hearing argument from both sides, the
Assize Court granted the requests on 19 March 1998. This order was made
pursuant to the provisions of Articles 12(5)(b), and 30.2 of the Cyprus
Constitution, Articles 6 §§ 1 and 3 b) of the Convention and the notion
of
a fair trial as developed in the recent case-law of the English courts.
The Assize Court also relied on Article 7(1) ofthe Cyprus Law of Criminal Procedure, Cap. 155, as amended.

11. The Attorney General immediately applied for
judicial review of the order by means of a writ of certiorari. The grounds
invoked were lack of jurisdiction and error of law on the face of the
record. The application was made ex parte and it came before Justice Artemides, a member ofthe Supreme
Court. He granted leave and suspended the enforcement of the order.
Thereafter, on 15 May 1998, after hearing the parties, Justice Artemides
granted the application and quashed the Assize Court’s order for excess
of
jurisdiction.

12. The applicant’s appeal (no. 10227) against
this decision was heard by the plenary of the Supreme Court consisting
of nine judges. The judges included Justice Gavrielides who, as it transpired
towards the end of the subsequent trial, had been actively involved
in the investigation that preceded the filing of the indictment against
the applicant, in his capacity as senior attorney attached to the Legal
Service of the Republic, i.e. the prosecution. However, at the time
of the hearing of the certiorari appeal, the defence had been unaware
of this fact and, therefore, no objection was taken to his participation
in the proceedings. Neither the prosecution nor Justice Gavrielides
referred to the matter.

13. On 24 September 1998 the appeal was dismissed
by a majority of7 to 2. Justice Gavrielides was part of the majority.

14. In the course of the subsequent proceedings
before the Assize Court, the prosecution provided several of the documents
which the defence had previously requested. However, it objected to
the defence having an opportunity to carry out forensic tests. The applicant
claims that the latter was of the utmost importance for his defence
since Vaseline was found on the knickers which the prosecution and the
Assize Court treated as strong corroborative evidence of his guilt.

15. The applicant was found guilty by the Assize
Court on 10 March 1999 and sentenced to three years’ imprisonment.
He appealed against his conviction to the Supreme Court. The appeal
(no. 53/99) was referred to a division ofthe Supreme Court consisting ofthree judges. The first ground ofappeal concerned Justice Gavrielides’ participation in the certiorari
proceedings, in violation of the applicant’s right to a fair trial
by an independent and impartial tribunal. The appeal was accompanied
by a plea, followed by a petition, that the certiorari judgment of the
Supreme Court of 24 September 1998 be vacated having regard to the principles
enunciated in a recent decision of the House of Lords in the case of
R. v. Bow StreetMetropolitan Stipendiary Magistrate and others ex parte Pinochet Ugarte (No2) (1999). Vacation ofthe said judgment was a precondition for the determination
of the applicant’s first ground ofappeal.

16. At the beginning of the appeal hearing, it
was pointed out to the defence that the court could not review the validity
of
a previous judgment ofthe Supreme Court in the context of an appeal. The defence
then filed a separate petition to the plenary of the Supreme Court to
vacate its previous judgment. The hearing of the appeal was accordingly
adjourned pending the determination ofthe petition.

17. The petition was examined by the plenary ofthe Supreme
Court consisting ofnine judges, including the three judges before whom the applicant’s
appeal was pending. The court was presided over by Justice Artemides.
An objection to the participation ofJustice Artemides was taken by the defence given his previous
involvement in the case. It was claimed that his participation at this
stage would render him a judge in his own cause and offend against the
rule of
impartiality. However, the objection was rejected.

18. The application to vacate was dismissed on
19 July 1999 by a majority decision delivered by Justice Artemides,
on the ground that the Supreme Court lacked jurisdiction to re-open
the proceedings and examine the validity of its previous judgment.

19. Following dismissal ofthe petition, the hearing ofthe appeal was resumed. The appellate division of the Supreme
Court indicated to the defence that, in view of the dismissal of the
application to vacate, the first ground of appeal was left in a vacuum.
The defence was then left with no option but to withdraw this ground
of appeal as it could no longer be determined.

20. A hearing of the remaining grounds of appeal
which the applicant had made then followed. The hearing was completed
on 2 November 1999, and judgment was reserved. The Supreme Court dismissed
the appeal on 18 January 2000, thereby re-affirming the applicant’s
conviction.

THE LAW

I. THE GOVERNMENT’S PRELIMINARY
OBJECTION

21. The Government reiterate the objection which
they had raised at the admissibility stage, namely that Article 6 does
not apply in the present case. They recall that in its admissibility
decision the Court rejected the objection on the ground that “the
knickers were considered by the defence to be an important piece of
evidence in the case against the applicant ... and the question of their
examination by the defence was crucial for the outcome of the trial
...”. However, the Government stress that these allegations, which
were put forward by the defence, are directly related to the issues
raised in the context of the applicant’s second application (no. 60804/00)
which was pending before the Court. The Government reiterate that the
examination of the knickers was not crucial to the outcome of the trial.
If, in the context of application no. 60804/00, the Court were to find
that there had been no violation of the fair trial requirement, the
present application is without object. The questions raised in the present
application become merely theoretical, purely academic and without any
substantive effect to the real issue, which is the ultimate fairness
or unfairness of the criminal trial.

22. The applicant alleges that the Government
seem to lose sight of the fact that the two applications concern violations
of two separate rights of the applicant and that the two rights form
different aspects of the right to a fair trial. He recalls that the
issue of an impartial tribunal emerged by reason of the participation
of Justice Gavrielides in the Supreme Court, even though he had been
actively involved in the police investigation against the applicant.
A finding of a violation of the applicant’s right to the disclosure
of material in the hands of the prosecution is in no circumstances a
pre-condition to finding a violation of the right to an impartial tribunal.

23. Furthermore, the applicant alleges that the
knickers were crucial for the outcome of the trial and, for this reason,
the certiorari proceedings in which Justices Artemides and Gavrielides
participated became decisive in the determination of the criminal charge
against the applicant. In its decision of 10 March 1999, the Assize
Court recognised the paramount importance of the knickers. In particular
the Assize Court stated that, in view of the presence of traces of Vaseline
on the knickers, the absence of the applicant’s DNA from swabs taken
from the complainant’s vagina and the absence of Vaseline on the gauze
with which her vagina was wiped by a medical practitioner, did not have
the far-reaching implications which the absence of such evidence would
have had.

24. The Court notes that the Government reassert
their compatibility objection raised at the admissibility stage. However,
it recalls that in its admissibility decision it had stressed that the
certiorari proceedings, although not determining a criminal charge against
the applicant, were closely interwoven with the proceedings before the
Assize Court. In this connection, the Court considers that it cannot
decide the issue without referring to the trial proceedings as a whole
and, consequently, decides to join this objection to the merits.

II. ALLEGED VIOLATION OF ARTICLE 6
§ 1 OF THE CONVENTION

25. The applicant alleges a violation of Article 6
§ 1 of the Convention, which in so far as relevant, reads as follows:

“In the determination of his civil rights and
obligations or of any criminal charge against him, everyone is entitled
to a fair ... hearing ... by an independent and impartial tribunal established
by law.”

26. The Government stress that the applicant did
not allege at any stage of the proceedings that Judges Gavrielides and
Artemides had acted with personal bias.

27. As regards the participation of Judge Gavrielides
in the examination of appeal no. 10227, the Government submit that there
was no legitimate reason to fear that he lacked impartiality. These
were certiorari proceedings and the question involved was purely legal
and not related to the facts of the case. In view of the nature of the
proceedings he did not, and could not, make any decision concerning
the merits of the charge against the applicant.

28. As regards the participation of Judge Artemides
in the context of application no. 53/99, the Government stress that the
issue to be determined in these proceedings was solely whether the Supreme
Court had jurisdiction to vacate a judgment adopted within the framework
of its appellate jurisdiction. In this respect, it is difficult to see
how Judge Artemides can be said to have become “a judge in his own
cause”. In the context of these proceedings, the applicant did not
seek review of the judgment of 24 September 1998, nor the rehearing of
appeal no. 10227.

29. Finally, the Government contend that, in the
circumstances of the application, the alleged violation cannot be related
to any actual prejudice to the applicant’s defence.

30. The applicant maintains that the proceedings
in which Judge Gavrielides participated involved the determination of
his right to have evidence disclosed prior to the hearing in order to
prepare his defence. As regards the proceedings in the context of application
no. 53/99, Judge Artemides could not participate since he was the judge
who gave the first instance judgment of the Supreme Court of 15 May
1998. He participated and presided over the Supreme Court in the proceedings
relating to the vacation of a judgment issued on appeal from his own
decision. The participation of a judge in appeal proceedings from his
own decision must be considered to render him a judge in his own cause.

31. Furthermore, the applicant claims that vacation
of the judgment did involve a re-opening of the appeal proceedings.
The Supreme Court was and remained the ultimate court of appeal. Therefore,
it could not review the validity of its prior decision unless re-opening
took place. The applicant admits that he did not seek a re-hearing.
He states that this was because his rights had already been affected
by the judgment of 24 September 1998 that was the subject-matter of
application no. 53/99. Upon vacation of that judgment, the first ground
of appeal could have been considered in the context of that appeal and
the applicant acquitted accordingly.

32. The Court notes that the present application
refers to interlocutory proceedings which preceded the trial in respect
of the charge against the applicant, which was finally determined by
a judgment of the Assize Court of 10 March 1999, upheld on appeal by
the Supreme Court in its judgment of 18 January 2000. The applicant
filed the present application against these interlocutory proceedings
on 21 January 2000. There followed another application by the applicant
lodged with the Court on 17 May 2000 (no. 60804/00), whereby he complained
that his trial was in breach of his right under Article 6 § 1 to a fair
hearing.

33. In the latter application he alleged, inter alia,
in support of his complaint that he had been deprived of the opportunity,
before his trial, to have his own scientific experts examine an important
piece of evidence, i.e. the complainant’s knickers, which were in
the possession of the prosecution. It was this allegation which led
the Court to declare the present application admissible, given the possibility
that the results of the interlocutory proceedings, which prevented the
scientific examination in question and which are the subject matter
of the application, “were decisive for the determination of a criminal
charge within the meaning of Article 6 § 1”. In this respect the Court
recalls its reasoning in its admissibility decision which was as follows:

“The Court considers that the certiorari proceedings
decided by Judge Artemides and then by the plenary of the Supreme Court,
although they did not determine a criminal charge against the applicant,
were closely interwoven with the proceedings before the Assize Court.
In effect, the Court notes that the knickers were considered by the
defence to be an importance piece of evidence in the case against the
applicant. Independently of the moment at which the knickers became
an exhibit at the trial in accordance with the domestic procedural rules
on the matter, the question of their examination by the defence was
crucial for the outcome of the trial. Any evidence which a forensic
examination might have disclosed could have had a important bearing
on the applicant’s guilt or innocence of the charges.

It follows that the Court considers that the
results of these proceedings were decisive for the determination of
a criminal charge within the meaning of Article 6 § 1.”

34. It is clear from that reasoning that the
admissibility decision was founded on the pre-trial assessment by the
applicant of the importance of the evidence regarding the examination
of the knickers in the light of the parties’ arguments which were
before the Court at that stage.

35. However, after the examination by the Court
of the second application, no. 60804/00, which dealt with the fairness
as a whole of the main proceedings against the applicant before the
Assize Court and the Court of Appeal, the Court came to the conclusion
that the evidence of the knickers and the related interlocutory proceedings,
did not ultimately play a decisive role in the determination of the
criminal charge against the applicant (decision 3 December 2002). In
this respect the Court repeats its findings in the decision which declared
that application inadmissible as follows:

“The order of the Assize Court for the delivery
of the complainant’s knickers to the applicant was issued before the
commencement of the trial. At that time there was no concrete evidence
before the Cyprus courts as to the relevance to the case of an independent
examination of the knickers by the defence.

The Court notes that, even if the applicant does
not have to show actual prejudice to the defence due to the non-examination
of the knickers, he still has to show the relevance of such an examination
to the case against him (see mutatis mutandis Jespers v. Belgium 27 DR p. 61). However the
applicant has failed to do so. He has also failed to substantiate his
argument that such an examination was of potential relevance to his
defence because of a possibility that there was a substance in the material
out of which the knickers were made which was of the same or similar
composition to Vaseline, or for any other reason specifically invoked
by the applicant.

The Court has reviewed the evidence which was
relied on by the Assize Court in convicting the applicant and which
was produced in court. According to the case-file, by the time the applicant
sought discovery of the complainant’s knickers for a scientific expertise
as to the presence or not of Vaseline, the pants had already been “washed”
by the prosecution expert in certain chemical liquids, with the result
that all the Vaseline had been removed from them. The Vaseline so extracted
was separately preserved by that expert in a tube which was produced
as an exhibit before the Court. Consequently such an expertise would
have been ineffective. Therefore there was no possibility of contradicting,
through an examination of the knickers, the evidence of the prosecution
expert as to the presence of Vaseline on them.

The Court also takes into account the following
elements: that the applicant was interrogated by the police on the day
of the offence for which he was convicted, i.e. 22 August 1996; that he
was then acting on legal advice; that the knickers were taken by the
police that same day and were delivered on 29 August 1996 to the Government
forensic expert but, for more than a year thereafter, no request for
an examination by a defence expert of any object in the hands of the
police was made.

The Court notes that the prosecution supplied
the defence before the trial with the written report of the forensic
expert. This expert gave oral testimony on behalf of the prosecution
and was cross-examined by the applicant’s counsel. In this respect
the Court observes that the sole argument put by the defence was that
the knickers examined by the prosecution expert were not those of the
complainant. In any event, the possibility of there being a substance
similar to Vaseline in the material out of which the knickers were made
was excluded by this expert and no evidence to the contrary was relied
on by the applicant.

The Court also notes that the applicant did not
complain of unfairness before the Assize Court on this particular discovery
point.

Finally, the Court gives special weight to the
fact that the conviction of the applicant was mainly based on the oral
testimony of the complainant, who was described by the Assize Court
as “completely credible”. The presence of Vaseline on the complainant’s
knickers was only one of three subsidiary elements of evidence corroborating
the complainant’s testimony. The other elements consisted of the evidence
of two witnesses to whom the complainant made her first complaint soon
after the incident of rape for which the applicant was found guilty.
The Assize Court also accepted the evidence of these witnesses as credible.
(According to Cyprus legislation, the first complaint is evidence of
the truth of the matters stated therein.)”

36. As already pointed
out above (paragraph 33), the interlocutory proceedings, which are the
subject matter of the present application, “were closely interwoven
with the proceedings before the Assize Court”. However, their ultimate
impact depended on the conduct of the Assize Court proceedings, viewed
as a whole. Therefore, given that the detailed examination of the Assize
proceedings in application no. 60804/00 has led to the conclusion that
the outcome of the interlocutory proceedings did not in fact play a
decisive role in the determination of the criminal charge against the
applicant, the Court also finds in the present case that the complaint
relating to the interlocutory proceedings does not give rise to a violation
of Article 6 § 1 of the Convention.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Joinsto the merits the Government’s preliminary objection;

2. Holds that there has been no violation of Article 6 § 1 of the
Convention.

Done in English, and notified in writing
on 7 January 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.